THE ADVERTISING STANDARDS AUTHORITY CHALLENGED

IS THE ADVERTISING STANDARDS AUTHORITY A SHAM? – YOU DECIDE

WHAT POWER DOES THE ADVERTISING STANDARDS AUTHORITY OF SOUTH AFRICA REALLY WIELD?

Anthony Rees
(Secretary-General: TNHA)

Let us introduce you to the Advertising Standards Authority (ASA). This is not a government body as you might expect from the “Authority” in its name. It is a private, limited company that is self-appointed, self-regulating, and industry funded. It is registered and incorporated according to the Companies Act of 1973.

As such, its powers are circumscribed by its Memorandum of Incorporation and Articles of Association (“Articles”), and not an Act of Parliament. It reports to no one, is accountable to no one, and no one monitors or reviews its procedures or activities.

To summarize its stated activities: it can conduct investigations and make “Rulings” as it pleases. It uses legal terminology for its processes, which are not based in law. It uses legal jargon in its communications and internal processes, words such a “rulings”, “arbitrations”, “appeals” and “compliance”. It even hires a “directorate” and appoints retired “judges” to render a appearance of a statutory body.

The ASA was originally set up as a self-regulatory body, of which membership is voluntary, and whose rules are only binding to its members. It was established in 1968, and was then aptly named the Advertising Standards Association. In later years it changed its name from Association to Authority.

The ASA presents 14 members, listed on its website. They have agreed to be bound by the ASA’s Code and voluntary system of self-regulation. A majority of other “persons”, “corporations” and “organisations” in South Africa have not been persuaded by the ASA to become members of the ASA, and are therefore not subject to the ASA’s Code and system of voluntary self-regulation. (See list at the end of article)

The ASA has in the past accepted that by virtue of its limited membership and its limited powers (set out in its Articles), that it has no jurisdiction over website advertising, pamphlets and advertising which appears in other media of non-members of the ASA. Yet time and again it continues to call on advertisers who are not members to respond to ASA complaints, participate in its processes, abide by its rulings and even pay the ASA’s appeal fees, without informing such advertisers that they are not legally obliged to do so.

If you wish to access it’ online database of previous “rulings”, you may only view the entries of the last 30 days. If you want to reference their records beyond this period, a hefty subscription fee of R3 078.00 applies.

This month I visited the ASA website and found a recent “Ruling” and “Ad-Alert” prominently displayed on its homepage.

A Dr Lungisa was apparently taken to task for handing leaflets out at a traffic intersection, which someone complained about. Even though Dr Lungisa is not a member of the ASA, the ASA processed the complaint against him and ruled that his advertisement was in contravention of the Advertising Code, effectively banning his adverts in South Africa. It went further to instruct ASA members not to accept Dr Lungisa’s ads in future. This is but one example of hundreds of questionable and arguably unlawful actions taken by the ASA, without legal authority.

People like Dr Lungisa, who has probably never heard of the ASA before, would have received official-looking correspondence from the ‘Authority’ urging him to respond to a complaint against his leaflets, and to prove the truth or accuracy of the claims associated with his products within an arbitrary deadline. It would also threaten that in the absence of a timeous and well-articulated response from him, a summary ruling will be made against him, threatening to impose sanctions such as an “Ad-Alert” against him in the event of an adverse Ruling by the ASA, and notification that he is entitled to appeal against an adverse ruling if aggrieved, subject however to payment to the ASA of appeal fees exceeding R150 000 per advertisement.

How is it that the ASA can continue to act in such a seemingly deceptive manner, despite Section 41 of the Consumer Protection Act, and despite the ASA’s acknowledged lack of jurisdiction and power and in the absence of any service agreement with such non-member advertisers?

Section 41 of the Consumer Protection Act deals with “False, misleading or deceptive misrepresentations”. It prohibits the use of innuendo or ambiguity as to a material fact, or the failure to disclose a material fact ” … if that failure amounts to a deception”. It also categorizes the failure to correct a misapprehension as “…a false, misleading or deceptive misrepresentation”.

We believe it is deceiving the public and industry at large by using the word “Authority” in its name, and words like “Rulings”, “Code”, “Appeals” and “Compliance” to represent its activities.

In recent years, scores of companies and practitioners in the natural health product industry have been at the receiving end of ASA complaints from members of the public and a handful of anti-CAM lobbyists, who appear to be manipulating the ASA through these complaints to limit or censure information about the benefit of natural health products.

The ASA does not have the medical expertise to evaluate health claim substantiation. It simply places the burden of substantiation of advertising claims on advertisers, which has the effect of presuming all advertising is false, unless proven otherwise.

Legally, it is the Medicines Control Council (MCC), a statutory body established by an Act of Parliament, that is mandated to evaluate health claims on product labels and associated marketing materials (advertising). Section 20(1) of the Medicines and Related Substances Act, 101 of 1965 is unequivocal this regard:

“No person shall (1) (a) publish or distribute or in any other manner whatsoever bring to the notice of the public or cause or permit to be published or distributed or to be so brought to the notice of the public any false or misleading advertisement concerning any medicine.”

Even though the MCC is empowered and obliged to deal with false or misleading advertisements for all medicines, including complementary medicines, it has neglected this primary obligation for three decades. Through its misleading representation to the public and industry at large, the ASA has effectively usurped the role of the Medicines Control Council to regulate natural health product advertising in South Africa.

For a number of years the ASA has represented itself as being authorised by the MCC to regulate Medicine Advertising in South Africa on behalf of the MCC, and made the false claims in its Advertising Code that it was doing so “in terms of Section 18C of the Medicines and Related Substances Control Act, 101 of 1965”. It is however unlawful for statutory bodies such as the Medicines Control Council or Consumer Protection Council to relegate their duties or functions to a non-statutory body like the ASA. The ASA has never had a mandate from the MCC to monitor medicine advertising.

The ASA’s lack of expertise, as required by the Medicines & Related Substances Act, and ignorance in regard to medical matters, has also led to absurd ASA rulings banning truthful statements which are in the public interest. One example was Solal advertisements, warning that “Too much sugar may cause weight gain”, “Too much sugar may cause obesity” and “Too much sugar may cause diabetes”. The ruling was made against Solal, despite the fact that these claims were contained in a World Health Organisation Bulletin No. 2003, 81(8) entitled: “Evidence to support a food-based dietary guideline on sugar consumption in South Africa”, which was in the ASA’s possession at the time it irrationally and irresponsibly banned the warnings mentioned above. On the strength that this was a false claim, the ASA banned the Solal advertisements.

A prominent lawyer who has been actively challenging the ASA for a member of years on behalf of companies like Solal and Groupon, Saul Shoot, has stated: “The ASA has no statutory power, no medical expertise and is actually a risk to public health.”

Marketing consultant and former head of legal affairs at the ASA, Stefan Vos is on record as saying: “There is a little group that has somehow turned the ASA into a quasi medicines regulator.”

We are aware that the ASA is currently being legally challenged by a few large manufacturers of natural health products in High Courts in South Africa.

They are questioning the jurisdiction of the ASA on the basis of what is described above.

We have also learned that the ASA is no longer accepting complaints against these litigants, pending the outcome of the cases against it.

We are also aware of a move among some companies which are members of the Health Products Association (HPA) to cancel its membership agreement with the ASA, and disentangle itself from the Advertising Code for natural health products, which is inappropriate and has been abused. This will go a long way towards thwarting anti-CAM lobbyists, who have become vexatious and habitual complainants to the ASA in recent years, in their bid to undermine confidence in natural health.

The ASA’s actions have seriously affected some companies’ good reputations, as well as incurring financial losses.

Unsuspecting non-member advertisers who have been induced to respond to ASA correspondence, participate in ASA processes (including ASA appeals) and abide by ASA rulings may well have actionable claims against the ASA, particularly if they paid the ASA’s “appeal fees” and/or if they were subjected to negative publicity in the form of ASA rulings, without being made aware of the ASA’s limited jurisdiction.

It is worthy to note that manufacturers and practitioners in the United Kingdom are also questioning the authority of their ASA.

POINTS TO REMEMBER

The ASA does not have jurisdiction over persons who are not its members;

The ASA Code binds only its members and no other parties;

The ASA has no jurisdiction over website advertising or advertising placed with other media who are non-members of the ASA;

Advertisers who are not ASA members are legally entitled to ignore the ASA’s correspondence, rulings and procedures.

The TNHA supports the principle that advertising practice should be monitored by a statutory Directorate for Natural Health Products, to make sure that health claims are neither fraudulent nor misleading. This Directorate should however be properly constituted by relevant experts in the fields of natural health, and should have the legal authority to take appropriate action. It needs to be a regulator we can look to with confidence and respect.

LIST OF CURRENT ASA MEMBERS

* If you or your company are are member of the following organisations, or advertise though any of their member publications, you may be bound by the Advertising Code of the ASA. You have the right to advertise in media publications which are not members of the ASA.